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The Times Uses the R Word

zuzu

“Radical,” that is.

Judge Alito is exactly the kind of legal thinker President Bush wants on the Supreme Court. He has a radically broad view of the president’s power, and a radically narrow view of Congress’s power. He has long argued that the Constitution does not protect abortion rights. He wants to reduce the rights and liberties of ordinary Americans, and has a history of tilting the scales of justice against the little guy.

And it’s not just Alito who gets the word applied to him:

It is likely that Judge Alito was chosen for his extreme views on presidential power. The Supreme Court, with Justice O’Connor’s support, has played a key role in standing up to the Bush administration’s radical view of its power, notably that it can hold, indefinitely and without trial, anyone the president declares an “unlawful enemy combatant.”

Bonus F word and O word:

Judge Alito would no doubt try to change the court’s approach. He has supported the fringe “unitary executive” theory, which would give the president greater power to detain Americans and would throw off the checks and balances built into the Constitution. He has also put forth the outlandish idea that if the president makes a statement when he signs a bill into law, a court interpreting the law should give his intent the same weight it gives to Congress’s intent in writing and approving the law.

Boy, someone at the Times has been eating their spinach. This is an unusually-strongly-worded editorial, the gist of which is that the Senate should wake up and oppose his nomination because of his extreme views.

I know people have complained that he got through the Judiciary Committee hearings relatively unscathed. But so did Bork — he went down in the full Senate after public outcry. So there’s some reason for hope.

25 thoughts on The Times Uses the R Word

  1. Let’s just hope that NYT is on the reading list of the people who should be representing their constituencies and opposing the appointment of a fourth nutcase to the Court.

  2. The only thing “outlandish” here is the NYT’s abject failure to provide evidence of Alito’s alleged “radicalism”. The Times’ misunderstands the unitary executive theory, which has nothing to do with “checks and balances” between the branches of the federal government, but concerns the president’s power and responsibilities within the executive. The editorial also distorts Alito’s dissent in Rybar which was really quite narrow- Alito would have easily upheld Congressional authority to regulate home-made machine guns had Congress simply included a statement of findings that the guns had an effect on interstate commerce, which was a perfectly defensible position given that this wasn’t long after SCOTUS had decided US v. Lopez, striking down part of the Gun-Free School Zones Act.

    For someone who’s supposedly a practicing lawyer, zuzu, you really ought to know better than to link to this nonsense as if it’s responsible, informed legal commentary.

  3. For someone who’s supposedly a practicing lawyer, zuzu, you really ought to know better than to link to this nonsense as if it’s responsible, informed legal commentary.

    Jon, put that wagging finger away.

    It’s an editorial. In a newspaper. Did I present it as “responsible, informed legal commentary?” I did not.

    And don’t “supposedly” me about my professional qualifications. You’re, what, a 1L?

  4. I’m not questioning your professional qualifications, just suggesting that because you’re a professional, you ought to be able to recognize that the Times’ case against Alito wouldn’t make it past summary judgment. Do you care to defend the editorial on the merits? Surely you can easily shred the arguments of a wee, wet-behind-the-ears 1L like myself..or do you concede that the NYT has no idea what it’s talking about?

  5. Jon, you’re missing the point of the post, which is to point out that the Times is using far stronger language in opposing Alito and to describe the Administration’s efforts than it or, really, most other newspapers have in the past. “Radical” is a term rarely used by the Gray Lady.

    And I think you’re a bit confused about the purpose of a newspaper editorial. It’s not meant to be a legal pleading, it’s an opinion piece stating the official view of the newspaper’s editorial board.

    I’m not questioning your professional qualifications, just suggesting that because you’re a professional, you ought to be able to recognize that the Times’ case against Alito wouldn’t make it past summary judgment.

    I’ve written plenty of summary judgment motions, and honestly, I don’t know what you’re trying to get at here. There’s no “case” to be disposed of; the paper is stating its position. They may turn out to be wrong, though I don’t think so. Alito’s positions *are* extreme, and pro-business, and anti-Roe, and anti-civil rights.

    I still don’t appreciate “you should know better” lectures.

  6. Jon, the summary judgment analogy is disingenuous. If you’ve seen one, you know that they come with huge appendices and lengthy briefs. There is not space in a five-column-inch editorial for that. The editorial merely summarizes arguments.

    On Rybar, I have already stated my position at some length in a guest-post here. I seem to recall that you commented extensively.

  7. There’s no “case” to be disposed of; the paper is stating its position. They may turn out to be wrong, though I don’t think so. Alito’s positions *are* extreme, and pro-business, and anti-Roe, and anti-civil rights.

    I understand full well that the paper is simply stating its position. But to be persuasive, an editorial position must have some sort of basis in fact. The Times offers no supporting evidence for its contentions. It simply repeats, as you do now, a conclusory litany of ad hominem adjectives: “radical”, “extreme”, etc. If you’re going to call someone an extremist, particularly a sitting federal appellate judge of 15 years who has been declared unanimously well-qualified by the ABA and by his colleagues across the political spectrum, it behooves you to explain what you’re talking about. If you don’t, and if you display basic incompetence of key elements of your argument, as the Times editorial does in its discussion of the unitary executive inter alia, why should anyone take that argument seriously?

    That’s my point- that the Times owes its readers and Judge Alito a little intellectual honesty, and should back up its intemperate rhetoric. I think that’s still relevant, even if your purpose in this post was merely to say “Gosh, the Times sure is using some strong laguage here!”

  8. Thomas- I recall your post, and don’t find it any more persuasive now than I did then. And yes, a newspaper editorial isn’t the same as a legal brief, but a certain minimum level of understanding of the subject commented on is certainly to be expected.

  9. Jon. Have you ever written a summary judgment motion? They run 25 pages at the least, with exhibits and appendices, like Thomas said.

    You honestly sound like a first-year who just learned about summary judgment motions in Civ Pro. The Times is making a public-opinion article.

    As Thomas said, you can’t expect the Times to make a full-ass legal argument in five (actually more like 10, since it’s 2 columns) column-inches, particularly when they’re doing a public-opinion piece.

    In any event, you’re totally wrong about whether the Times piece would survive summary judgment. The whole thing with SJ is that there must be no genuine issues of triable fact. Nothing, but nothing with Alito does not raise genuine issues of triable fact.

  11. In any event, you’re totally wrong about whether the Times piece would survive summary judgment.

    For crying out loud, I was using “this wouldn’t make it past summary judgment” as a metaphor for the Times making an exceedingly weak argument. I didn’t intend for it to be taken so literally- yours and Thomas’s version of strict constructionism puts Scalia’s to shame. Duly noted: a newspaper editorial is not the same thing as a legal brief. But that does not absolve the Times from making shoddy arguments in an attempt to distort the record of an eminently qualified, mainstream, center-right jurist.

  13. And perhaps some day you’ll apply that vast legal intellect to buttressing the case against Alito, because you certainly haven’t done so here. I can understand why you’d rather argue semantics over substance, though.

  16. That’s my point- that the Times owes its readers and Judge Alito a little intellectual honesty, and should back up its intemperate rhetoric.

    Don’t shoot the messenger, write a letter to the editor.

  17. Jon. Quit mixing up legal and editorial concepts.

    The burden of proof in a legal case is one thing. Editorial responsibilty is another.

  18. Uh, I haven’t made any new substantive statements in this thread since your 11:41 post, so I’m not sure what you’re responding to, zuzu. I think at this point it might be best to move on, as we’re just going around in circles- I would like to discuss the merits of the “radical” charge against Alito, while you’re content to torch straw men about me “mixing up” editorials with legal issues, even after I’ve said at least twice that A) yes, of course, there are two different applicable standards, and B) that’s not really my point.

    So, crappy weather we had today, yeah?

  19. The weather today was shitty.

    As was your argument as to why the Times should have been held to some sort of summary-judgment standard for its editoral about Alito.

  20. As was your argument as to why the Times should have been held to some sort of summary-judgment standard for its editoral about Alito.

    I’m just going to sign off in this thread by linking to this, and quoting from it, as I think it neatly summarizes our exchange:

    …I identified a new type of Internet debating “knockout.” It’s when someone attacks the hypothetical part of your argument as if that’s the point.

    Example:

    YOU: “If you traveled back in time, you would see that the atmosphere on earth was very different.”

    IDIOT: “It’s impossible to travel back in time!”

    That’s a victory by knockout for you. (Bonus points if the idiot also argues that you can’t “see the atmosphere.”)

  22. At least Scott Adams is willing to get into the dirt instead of trying to endlessly score points off of an adversary’s linguistic error; nor does he generally attempt to use argument from authority as a debating tactic; nor is he under the impression that ideas gain or lose validity because of the identity/profession of their holders. Also, he knows the difference between a blog discussing ideas and a comic strip. But none of that is material.

    This is material: Do you have any legal insight into or support of the theory that Alito’s view of executive authority is radically broad, or that his view of Congressional power is radically narrow?

  23. At least Dilbert doesn’t pretend to have never done any of those things himself while lecturing people to avoid them while then posting on blogs that espouse a different political outlook than one’s own. Huh.

  24. Robert, I linked above to my prior piece on Alito’s commerce clause jurisprudence. On my account, he’s signalled an intention to roll back sixty years of jurisprudence that extends to Congress the power to do lots of stuff.

  25. I know people have complained that he got through the Judiciary Committee hearings relatively unscathed. But so did Bork — he went down in the full Senate after public outcry. So there’s some reason for hope.

    Yes, HOPE! Come on, folks, let’s use the other “f-word” – FILIBUSTER. If we want our reps in the Senate to show a little backbone, we need to give them the legs to stand on. Call them. Write them. Submit letters to the editor. This is the time for the public outcry!

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